State v. Lopez-Gonzalez

2020 UT App 15THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ISRAEL LOPEZ-GONZALEZ,
Appellant.
Opinion
No. 20180633-CA
Filed January 24, 2020
Second District Court, Ogden Department
The Honorable Jennifer L. Valencia
No. 171901740
Samuel A. Goble and Erin E. Byington, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
POHLMAN, Judge:
¶1 Israel Lopez-Gonzalez confessed to a detective and then
testified at trial that he took actions against the victim (Victim) to
“teach him a lesson” after Victim shortchanged him. Lopez-
Gonzalez admitted that he struck and hurt Victim with a
handgun, told Victim that he “wasn’t going anywhere,” took
Victim’s clothing, fired a shot into the ground, and abandoned
Victim on a dirt road. These admissions confirmed many of the
same facts that other witnesses testified to at trial. A jury
convicted Lopez-Gonzalez of aggravated kidnapping,
aggravated robbery, and aggravated assault. He appeals, raising
several claims of ineffective assistance of counsel. We affirm.
State v. Lopez-Gonzalez
BACKGROUND 1
¶2 In June 2017, Lopez-Gonzalez lent money to a woman
(Wife) for her husband’s (Husband) bail. Lopez-Gonzalez agreed
to the loan because Husband used to sell him marijuana. Wife,
Lopez-Gonzalez, and another friend (Friend) went together and
bailed Husband out of jail in Brigham City, Utah. After
Husband’s release, the group decided to buy methamphetamine
in Ogden, Utah. Once there, they met up with Victim, who had a
contact for buying drugs. Lopez-Gonzalez gave Victim around
$390 to make the purchase. Victim and Friend left the others to
make the deal. While they were away, and unbeknownst to
Friend, Victim pocketed some of the money, hiding $200 in his
underwear.
¶3 When Friend and Victim rejoined the others, Victim told
Lopez-Gonzalez that they “couldn’t get the drugs” and that
some of the money was “missing.” In response, Lopez-Gonzalez
“got really mad” and yelled at Victim. Wife and Husband got in
the front of Wife’s car, and Lopez-Gonzalez, Victim, and Friend
got in the back. Lopez-Gonzalez then told Wife to drive them to
Tremonton, Utah.
¶4 While on the way, Lopez-Gonzalez pulled out his
handgun and hit Victim a number of times in the head with his
fist or the gun. He demanded the return of the missing money
and threatened to shoot Victim and “blow off [his] balls.” Lopez-
Gonzalez also warned Victim not to move. When Wife and
Husband looked into the back seat, Victim was “bleeding out of
his eye.” Victim called his aunt on the phone and asked her for
money. Victim’s phone was then taken from him.
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101,
¶ 2 n.1, 400 P.3d 1127 (cleaned up).
20180633-CA 2 2020 UT App 15State v. Lopez-Gonzalez
¶5 When the group neared Tremonton, Lopez-Gonzalez had
Wife stop at a dirt road. Friend left and went home. Meanwhile,
Lopez-Gonzalez walked Victim at gunpoint up the dirt road and
repeatedly asked, “[W]here’s the money?” Lopez-Gonzalez then
ordered Victim to take off his pants, shoes, and socks and to lie
face down on the ground. As Victim removed his clothes, Lopez-
Gonzalez temporarily handed the gun to Husband and began
searching the clothes. Victim then gave up the $200, retrieving it
from his underwear. Next, Husband returned to the car where
Wife was waiting, and Lopez-Gonzalez struck Victim in the back
of the head with the gun. He asked, “[D]o you think this is for
play?” From a few feet behind Victim, Lopez-Gonzalez shot the
gun into the ground. Husband and Wife both heard the gunshot
from the car. 2 Lopez-Gonzalez continued to hit Victim until
Victim passed out.
¶6 When Victim awoke, his cell phone, pants, shoes, and
socks were gone. Victim, “totally covered in blood,” had to walk
to a hospital for treatment. He required stitches above and below
his eye and staples in the back of his head. The orbital socket on
the right side of his face was shattered, and at the time of Lopez-
Gonzalez’s trial Victim still suffered vision problems in his right
eye.
¶7 When the police arrested Lopez-Gonzalez and searched
his vehicle, they found a gun that Husband later identified at
trial as the one that Lopez-Gonzalez wielded. The police also
recovered a bullet casing from the dirt road.
¶8 A detective (Detective) interviewed Lopez-Gonzalez at
the police station after informing him of his rights. Lopez-
Gonzalez told Detective that he had lent bail money to Wife “to
make his life better because he purchased marijuana from
2. Later, when Wife asked Lopez-Gonzalez whether he had
killed Victim, Lopez-Gonzalez told her that he “wouldn’t kill
him over his money” but he “just had to teach him a lesson.”
20180633-CA 3 2020 UT App 15State v. Lopez-Gonzalez
[Husband].” He also explained that after bailing Husband out of
jail, they went to Ogden to buy methamphetamine but it “didn’t
work out.” Lopez-Gonzalez said that when Victim was $200
short, he “was mad” that “somebody was trying to steal his
money,” and he then “pulled out a gun because he didn’t know
who [Victim] was” or “what he had.”
¶9 Lopez-Gonzalez admitted to Detective that he used the
gun to hit Victim five times in the face and in the back of the
head. He explained that he pointed the gun at Victim and asked
“if [Victim] wanted [him] to shoot his testicles.” He also told
Victim that he “wasn’t going anywhere.” Lopez-Gonzalez
acknowledged that Victim’s phone was taken from Victim in the
car. Lopez-Gonzalez stated that he “wanted to teach [Victim] a
lesson” and that they drove to the dirt road near Tremonton so
that he could “make [Victim] walk back.” Lopez-Gonzalez
described how he tried to get his money back at the dirt road,
including that he directed Victim to remove his clothes, shoes,
and socks and that he made Victim lie face down on the ground.
Lopez-Gonzalez explained that he then took his money back and
took Victim’s clothes. Although Lopez-Gonzalez initially denied
firing the gun at the dirt road, he later admitted that he “fired it
into the ground because he was mad.” During this interview,
Lopez-Gonzalez never described a time when Victim acted
aggressively or made threats.
¶10 The State charged Lopez-Gonzalez with aggravated
kidnapping, aggravated robbery, and aggravated assault. It also
filed the same charges against Husband and Friend, but they
both agreed to plead guilty to lesser charges and to testify
against Lopez-Gonzalez.
¶11 At a jury trial, Wife, Victim, Husband, and Friend testified
and recounted the events described above. Detective also
testified regarding his investigation and his interview with
Lopez-Gonzalez.
¶12 Lopez-Gonzalez testified in his own defense. Although he
initially began testifying using an interpreter, he soon asked
20180633-CA 4 2020 UT App 15State v. Lopez-Gonzalez
whether it would “be better” for him to testify in English. After
trial counsel told him that “most likely” it was “a little easier for
the jury” if he testified in English but that it was “up to” him,
Lopez-Gonzalez provided the majority of his testimony in
English without the use of an interpreter.
¶13 In his testimony, Lopez-Gonzalez confirmed key aspects
of the State’s case. For example, he admitted that he hit Victim in
the head with the gun and caused his injuries, told Victim that
“if he won’t behave[] something else will happen[],” took
Victim’s clothes, and fired a shot in the dirt road. Lopez-
Gonzalez also admitted that he told Detective that he did this to
Victim “to teach him a lesson.”
¶14 Significantly, Lopez-Gonzalez also testified that while the
group drove back from the failed drug transaction in Ogden,
“[Victim] started getting up to try to crash the car,” which
caused Lopez-Gonzalez to feel “in danger,” and “that’s when
[Lopez-Gonzalez] pulled [his] weapon” and “hit” Victim. Lopez-
Gonzalez insisted that he had mentioned this to Detective. To
rebut this testimony, the State recalled Detective as a witness,
and Detective testified that Lopez-Gonzalez did not tell him
about Victim attempting to grab the wheel of the car.
¶15 The jury found Lopez-Gonzalez guilty as charged. On the
special verdict forms, the jury indicated it found that the State
had proved beyond a reasonable doubt that Lopez-Gonzalez
used a dangerous weapon in commission or in furtherance of the
aggravated kidnapping and the aggravated assault. But the jury
found that the State had not proved that Lopez-Gonzalez used a
dangerous weapon in commission or in furtherance of the
aggravated robbery. As a result, the aggravated kidnapping and
aggravated assault convictions were subject to a dangerous
weapon enhancement, but the aggravated robbery conviction
was not.
¶16 The district court sentenced Lopez-Gonzalez to
concurrent prison terms of sixteen years to life for aggravated
kidnapping, five years to life for aggravated robbery, and fifteen
20180633-CA 5 2020 UT App 15State v. Lopez-Gonzalez
years for aggravated assault resulting in serious bodily injury.
Lopez-Gonzalez appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Lopez-Gonzalez asks us to reverse his convictions
for aggravated robbery and aggravated assault due to ineffective
assistance of counsel. 3 “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law.” State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344 (cleaned up).
¶18 He also asks that we reverse his convictions under
the cumulative error doctrine. We will reverse under this
doctrine “only if the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned
up).
ANALYSIS
I. Ineffective Assistance of Counsel
¶19 To prove a claim of ineffective assistance of counsel, a
defendant must establish both that his “counsel’s performance
was deficient” and that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish the first element, the defendant must show that
his counsel’s performance “fell below an objective standard
of reasonableness.” Id. at 688. Thus, he “must convince us
3. Lopez-Gonzalez’s briefing challenges all three convictions. But
at oral argument before this court, he withdrew his challenge to
his aggravated kidnapping conviction. We therefore consider his
arguments as pertaining only to his convictions for aggravated
robbery and aggravated assault.
20180633-CA 6 2020 UT App 15State v. Lopez-Gonzalez
that, despite the fact that ‘counsel is strongly presumed to
have rendered adequate assistance,’ counsel’s acts or omissions
nevertheless fell ‘outside the wide range of professionally
competent assistance.’” State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d
1031 (quoting Strickland, 466 U.S. at 690). The second
element requires the defendant to show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. In
evaluating this element, courts “consider the totality of the
evidence before the judge or jury,” recognizing that “[s]ome
errors will have had a pervasive effect on the inferences to
be drawn from the evidence, altering the entire evidentiary
picture, and some will have had an isolated, trivial effect.” Id. at
695–96.
¶20 “Proof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.” State v.
Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (cleaned up). Both
elements of the claim “must be present, and if either is lacking,
the claim fails and the court need not address the other.” Nelson,
2015 UT 62, ¶ 12.
¶21 Lopez-Gonzalez asserts that trial counsel provided
constitutionally ineffective assistance in a number of ways. In
particular, he contends trial counsel failed to (A) object to the
allegedly “confusing” verdict forms and jury instructions,
(B) propose jury instructions on a lesser included offense for
aggravated robbery, (C) propose jury instructions for self-
defense, (D) move to suppress some of Lopez-Gonzalez’s
statements to Detective, (E) adequately investigate and attack the
witnesses’ credibility with their criminal records and plea
bargains, (F) object to Detective’s allegedly expert testimony at
trial, (G) “offer a theory of defense,” (H) instruct Lopez-
Gonzalez to answer through an interpreter when he testified at
trial, and (I) “prepare a direct examination” of Lopez-Gonzalez.
We address each contention in turn.
20180633-CA 7 2020 UT App 15State v. Lopez-Gonzalez
A. The Verdict Forms and Jury Instructions
¶22 Lopez-Gonzalez first contends that trial counsel provided
ineffective assistance when he did not object to the allegedly
“confusing” verdict forms and jury instructions regarding
aggravated robbery.4 We disagree.
¶23 To begin with, Lopez-Gonzalez has not identified any
error or other problem in the jury instruction for aggravated
robbery and the special verdict form that should have prompted
trial counsel to object. Lopez-Gonzalez concedes that the
aggravated robbery instruction correctly stated the law and
allowed the jury to properly convict him if it found beyond a
reasonable doubt that “in the course of committing” robbery, he
“used or threatened to use a dangerous weapon as defined in
Utah law” or “caused serious bodily injury upon another.” See
generally Utah Code Ann. § 76-6-302 (LexisNexis 2017) (defining
aggravated robbery); id. § 76-6-301 (defining robbery). Similarly,
Lopez-Gonzalez points to no error in the special verdict form,
which required the jury to find whether the State had proved
beyond a reasonable doubt that Lopez-Gonzalez “used a
dangerous weapon in commission or in furtherance of the crime
of aggravated robbery.” The special verdict form comported
with the statute that allows sentences for felony convictions to be
increased by one year if the jury finds that a defendant used a
dangerous weapon in commission of the crime, and Lopez-
Gonzalez has not suggested otherwise. See id. § 76-3-203.8.
4. In his opening brief, Lopez-Gonzalez also asserts that we
should consider his unpreserved complaint about the
“confusing” special verdict forms and jury instructions under
the plain error exception to our preservation rule. The State
responds that any error in this regard was invited, precluding
plain error review. In his reply brief, Lopez-Gonzalez concedes
the State’s point and abandons his plain error argument. We
accordingly do not address plain error review on this subject any
further.
20180633-CA 8 2020 UT App 15State v. Lopez-Gonzalez
¶24 Lopez-Gonzalez’s argument is instead based entirely on a
perceived inconsistency in the jury’s verdict. He contends that
the jury must have been confused (and thus the instruction and
form must have been confusing) because it found him guilty of
aggravated robbery, but it did not find that the State had proved
that he used a dangerous weapon in commission of that offense.
But there are two problems with his argument. First, the jury’s
verdict is not inconsistent. Because of the differences between
the aggravated robbery and the sentencing enhancement
statutes, the jury did not need to find that Lopez-Gonzalez used
the gun in commission of the robbery to find him guilty of
aggravated robbery. Compare id. § 76-6-302, with id. § 76-3-203.8.
Rather, it could have found the elements of the crime were met if
it concluded that Lopez-Gonzalez threatened to use the gun or
caused Victim serious bodily injury. See id. § 76-6-302(1)(a)–(b).
Second, even if the jury’s decision had been inconsistent, it does
not necessarily follow that trial counsel acted unreasonably. And
if Lopez-Gonzalez cannot identify a single basis upon which trial
counsel should have objected to the instruction or verdict form,
he cannot prove that his counsel’s performance was objectively
unreasonable. Thus, this claim of ineffective assistance of
counsel is unavailing. 5
B. Lesser Included Offense
¶25 Lopez-Gonzalez next contends that trial counsel rendered
ineffective assistance by not requesting a jury instruction on
robbery as a lesser included offense of aggravated robbery. To
have the jury instructed on a lesser included offense, a defendant
is required to show not only that “the charged offense and the
5. Lopez-Gonzalez also argues that trial counsel should have
objected to the jury instruction and special verdict form related
to aggravated assault. But he similarly concedes that this jury
instruction was “also technically correct” and does not pinpoint
any errors in the jury instruction or the special verdict form.
Thus, this argument fails.
20180633-CA 9 2020 UT App 15State v. Lopez-Gonzalez
lesser included offense have overlapping statutory elements” but
also “that the evidence provides a rational basis for a verdict
acquitting the defendant of the offense charged and convicting
him of the included offense.” State v. Powell, 2007 UT 9, ¶ 24, 154
P.3d 788 (cleaned up).
¶26 The pertinent difference between aggravated robbery
and robbery is that a person commits aggravated robbery if
he “uses or threatens to use a dangerous weapon” or
“causes serious bodily injury upon another.” 6 Utah Code Ann.
§ 76-6-302(1)(a)–(b) (LexisNexis 2017); see also id. § 76-6-301
(defining robbery). Lopez-Gonzalez asserts that the jury’s
finding on the special verdict form—that the State had
not proved that he used a dangerous weapon in commission
or in furtherance of aggravated robbery—provides “a rational
basis for which to acquit [him] of aggravated robbery
and possibl[y] convict him of the lesser included offense.”
Lopez-Gonzalez’s argument misses the mark. The question is
not whether the verdict provided a rational basis for the
lesser included offense, 7 but whether the evidence did. See Powell,
2007 UT 9, ¶ 24. And in this respect, Lopez-Gonzalez has
not addressed the evidence. As a result, he has not shown
that the district court would have been obliged to give a
jury instruction on robbery as a lesser included offense, and he
6. Another variant of aggravated robbery occurs when in the
course of committing robbery, a person “takes or attempts to
take an operable motor vehicle.” Utah Code Ann. § 76-6-302(1)(c)
(LexisNexis 2017). Here, the jury was not instructed on that
variant.
7. Even if the verdict were relevant to this inquiry, we do not
share Lopez-Gonzalez’s view of it. As explained, supra ¶ 24, the
jury could have been of the opinion that Lopez-Gonzalez did not
use the gun in the robbery, but that he was still guilty of
aggravated robbery because he either threatened to use the gun
or caused Victim serious bodily injury.
20180633-CA 10 2020 UT App 15State v. Lopez-Gonzalez
therefore has not established that trial counsel was ineffective for
failing to request such an instruction. See State v. Hauptman, 2011
UT App 75, ¶ 10, 249 P.3d 1009.
C. Self-defense
¶27 Lopez-Gonzalez contends that trial counsel rendered
ineffective assistance when he did not propose jury instructions
for self-defense or argue the theory in closing argument. In
support, he relies on his own trial testimony that on the way to
Tremonton, Victim “started getting up to try to crash the car”
and “that’s when [Lopez-Gonzalez] pulled [his] weapon to hit
him,” and he asserts that “[i]t is apparent . . . that [Victim] did
something to provoke [him].” 8 He further asserts that if the jury
had been given the option to consider self-defense, his “assault
in the vehicle would be justified.”
¶28 Utah law provides that “[a] person is justified in
threatening or using force against another when and to the
extent that the person reasonably believes that force or a threat
of force is necessary to defend the person or a third person
against another person’s imminent use of unlawful force.” Utah
Code Ann. § 76-2-402(1) (LexisNexis 2017). 9 Once self-defense is
adequately raised, 10 the State has the burden “to disprove the
8. In so arguing, Lopez-Gonzalez relies in part on a police report
attached as an addendum to his brief. Because that report is not
part of the record on appeal, we do not consider it. See State v.
Jaramillo, 2016 UT App 70, ¶ 27, 372 P.3d 34 (declining to
consider on appeal evidence not in the record).
9. This statute has been recently amended, but we cite the
version in effect at the time of Lopez-Gonzalez’s crimes.
10. “When there is a basis in the evidence, whether the evidence
is produced by the prosecution or by the defendant, which
would provide some reasonable basis for the jury to conclude that
(continued…)
20180633-CA 11 2020 UT App 15State v. Lopez-Gonzalez
affirmative proposition of self-defense, not just prove guilt,
beyond a reasonable doubt.” State v. Garcia, 2001 UT App 19,
¶ 16, 18 P.3d 1123.
¶29 Even if trial counsel had asked for a self-defense
instruction or argued the theory, we are not persuaded that
“there is a reasonable probability that . . . the result of the
proceeding would have been different.” See Strickland v.
Washington, 466 U.S. 668, 694 (1984). In other words, we discern
no reasonable likelihood that the jury could have entertained a
reasonable doubt as to whether Lopez-Gonzalez acted in self-
defense. We reach this conclusion because of the thin evidence
supporting a self-defense theory and the strength of the evidence
against Lopez-Gonzalez. See id. at 696 (explaining that a verdict
“only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record
support”).
¶30 No evidence corroborated Lopez-Gonzalez’s self-serving
trial testimony that Victim tried to grab the wheel of the car. And
there was no other evidence that Victim made any threats or that
Victim acted aggressively. By contrast, there was ample evidence
that Lopez-Gonzalez escalated the situation, pulled out his gun,
struck Victim, and threatened him—all to “teach [Victim] a
lesson.” Four eyewitnesses testified consistently to these events,
and their testimonies matched the story that Lopez-Gonzalez
told Detective. Indeed, Lopez-Gonzalez’s self-defense theory
conflicted with his prior statements to Detective.
(…continued)
[an act] was done in self-defense, an instruction on self-defense
should be given to the jury.” State v. Garcia, 2001 UT App 19, ¶ 8,
18 P.3d 1123 (cleaned up). For purposes of our analysis, we
assume that, under this standard, the district court would have
instructed the jury on self-defense had trial counsel requested
such an instruction.
20180633-CA 12 2020 UT App 15State v. Lopez-Gonzalez
¶31 On this record, and taking into consideration the State’s
burden to disprove the proposition of self-defense beyond a
reasonable doubt, see Garcia, 2001 UT App 19, ¶ 16, we see no
reasonable likelihood that a self-defense argument would have
led the jury to view Lopez-Gonzalez’s use of force against Victim
as “necessary to defend the person or a third person against
[Victim’s] imminent use of unlawful force,” see Utah Code Ann.
§ 76-2-402(1). For this reason, we conclude that Lopez-Gonzalez
was not prejudiced by trial counsel’s decisions not to propose
jury instructions for self-defense and not to argue the theory in
closing argument. We therefore reject this claim.
D. Lopez-Gonzalez’s Statements to Detective
¶32 Lopez-Gonzalez contends that trial counsel should have
moved to suppress the statements he made to Detective after his
arrest, during the car ride to the police station, and before he was
given proper Miranda warnings. In general, under Miranda v.
Arizona, 384 U.S. 436 (1966), “‘the prosecution may not use
statements . . . stemming from custodial interrogation of the
defendant’ unless certain procedural safeguards were employed,
including informing the defendant of his right to remain silent
[and] to have his counsel present during questioning.” Layton
City v. Carr, 2014 UT App 227, ¶ 17, 336 P.3d 587 (quoting
Miranda, 384 U.S. at 444). To succeed on this ineffective
assistance claim, Lopez-Gonzalez must show that his Miranda
rights were actually violated. See State v. Ferry, 2007 UT App 128,
¶ 12, 163 P.3d 647; State v. Kooyman, 2005 UT App 222, ¶ 31, 112
P.3d 1252.
¶33 In support of his position, Lopez-Gonzalez relies
entirely on a police report attached as an addendum to his
brief. He claims it indicates that “officers were eliciting
incriminating information from [him], while deliberately
delaying Miranda warnings,” and that it “appears [he was]
speaking to [the officers] . . . about the case.” The police report,
however, is “not a part of the record before this court, and we do
not consider new evidence on appeal.” See State v. Jaramillo, 2016
20180633-CA 13 2020 UT App 15State v. Lopez-Gonzalez
UT App 70, ¶ 27, 372 P.3d 34 (cleaned up). Indeed, “a defendant
cannot bring an ineffective assistance of counsel claim on
appeal without pointing to specific instances in the record
demonstrating both counsel’s deficient performance and the
prejudice it caused the defendant.” State v. Griffin, 2015 UT 18,
¶ 16, 441 P.3d 1166 (emphasis added); see also id. ¶ 16 n.11
(“Our appellate rules require citation to the record for each
error alleged on appeal.”). Because we cannot consider the
police report and Lopez-Gonzalez has not directed us to
any supportive record evidence, his claim is grounded only
in speculation. 11 And these speculative allegations alone are
not sufficient to demonstrate that his Miranda rights
were violated and that trial counsel should have moved
to suppress his statements. See State v. Munguia, 2011 UT 5, ¶ 30,
253 P.3d 1082 (“Proof of ineffective assistance of counsel
cannot be a speculative matter but must be a demonstrable
reality.” (cleaned up)); see also Ferry, 2007 UT App 128, ¶ 12;
Kooyman, 2005 UT App 222, ¶ 31. Accordingly, we reject this
claim.
E. The Witnesses’ Criminal Records and Plea Bargains
¶34 Lopez-Gonzalez next contends that trial counsel was
ineffective in failing to attack the witnesses’ credibility with their
criminal records and plea bargains. 12 He asserts that trial counsel
11. Although Lopez-Gonzalez suggests that “[a] hearing may be
required to learn” the content of any conversations during the
car ride, he has not moved to remand to the district court for a
hearing or the entry of factual findings associated with this claim
of ineffective assistance of counsel. See generally Utah R. App. P.
23B (outlining the procedure for parties to criminal cases to
move for remand to the trial court for entry of findings necessary
to determine an ineffective assistance claim).
12. In connection with this ineffective assistance claim, Lopez-
Gonzalez complains that trial counsel did not adequately
(continued…)
20180633-CA 14 2020 UT App 15State v. Lopez-Gonzalez
did not explore “potentially exculpatory evidence” regarding
Victim, Husband, and Friend, arguing that “the credibility of
each witness was paramount regarding the self defense claim.”
According to Lopez-Gonzalez, trial counsel also should have
used Victim’s criminal history to “show his unreliability” and to
“cast[] doubt about whether [Victim] was forced into the car and
whether he lunged for the steering wheel—endangering
everyone in the car.” And trial counsel should have used
Husband’s and Friend’s favorable plea deals to show that at trial
(…continued)
investigate the witnesses’ criminal records and the bases for their
plea deals. In support, he attaches extra-record evidence and
asks for a hearing to make further inquiries. As explained above,
we cannot consider non-record evidence. See Jaramillo, 2016 UT
App 70, ¶ 27. And, to the extent he seeks relief under rule 23B,
his request is not properly made or supported. He makes this
request in a footnote in his opening brief. But, as the State points
out, a party moving under rule 23B of the Utah Rules of
Appellate Procedure to “remand the case to the trial court for
entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel,”
must file a motion that “conform[s] to the requirements of Rule
23.” Utah R. App. P. 23B(a)–(b). Rule 23 requires that “an
application for an order or other relief shall be made by filing a
motion for such order or relief.” Id. R. 23(a). Lopez-Gonzalez’s
footnote request for a “23B hearing” is not a motion as
contemplated by rule 23, and a request under rule 23B is
therefore not properly before us. We further note that Lopez-
Gonzalez has not complied with rule 23B’s other requirements,
including that any such motion shall include or be accompanied
by “affidavits alleging facts not fully appearing in the record on
appeal that show the claimed deficient performance of the
attorney” and “that show the claimed prejudice suffered by the
appellant as a result of the claimed deficient performance.” See
id. R. 23B(b).
20180633-CA 15 2020 UT App 15State v. Lopez-Gonzalez
they were “heaping blame on [Lopez-Gonzalez] to minimize the
consequences to themselves.” 13
¶35 Evidence of the witnesses’ criminal records and plea
bargains was before the jury; it was introduced by the State. In
fact, the prosecution mentioned in its opening statement that
Friend and Husband had faced the same charges as Lopez-
Gonzalez but that they had pleaded guilty to lesser crimes and
had agreed to testify against Lopez-Gonzalez. Then, in its case-
in-chief, the prosecution explored the witnesses’ criminal records
and plea deals.
¶36 Regarding Victim, the prosecutor elicited Victim’s
criminal history on direct examination. For example, Victim
testified that he was currently incarcerated and that he had been
convicted of three prior felonies. Victim also admitted that he
initially lied to the police and said that the June 2017 incident
was about a gambling debt because he “didn’t want them to
know about the drug part.” Thus, the State elicited facts about
Victim’s criminal history and an inconsistency in his story that
undermined his credibility.
¶37 Similarly, the prosecutor began his direct examinations of
Husband and Friend with their respective criminal records and
plea deals. Husband and Friend admitted that they each had an
unrelated felony conviction. They also admitted to pleading
guilty to lesser charges in connection with the June 2017
incident.
¶38 Because the State highlighted the witnesses’ criminal
records and plea deals, the State effectively preempted any need
13. Lopez-Gonzalez also notes that Wife “was married to
[Husband] and had incentives to protect him, and to avoid
charges herself.” But because he does not further develop an
argument regarding possible impeachment of Wife, we do not
consider this argument.
20180633-CA 16 2020 UT App 15State v. Lopez-Gonzalez
for trial counsel to introduce this information in attacking their
credibility. The jury already knew that Victim, Husband, and
Friend all had issues that might undermine the veracity of their
accounts. Yet these witnesses all testified to a largely consistent
story, and Lopez-Gonzalez’s own statements confirmed the
essential details of that story. In light of all this evidence before
the jury, we are not persuaded that the evidentiary picture
would have been materially altered if trial counsel had replowed
the same ground. Cf. State v. Lyman, 2001 UT App 67U, para. 4
(seeing no prejudice where trial counsel failed to call witnesses
that would have testified to facts already in evidence). We thus
conclude that Lopez-Gonzalez has not shown prejudice from
trial counsel’s claimed deficient performance in this regard and
that this claim is also unavailing.
F. Expert Testimony
¶39 Lopez-Gonzalez contends that trial counsel was
ineffective for not objecting to “expert statements elicited from
the detective about whether the force of the strikes could be
lethal, and whether they were reasonable in the context of self
defense.” He asserts that this testimony was prejudicial because
it went “toward an element of why the offenses were
aggravated” and undermined any self-defense claim.
¶40 At trial, Detective testified that he had been involved in
cases with people who have been hit in the head with a hard
weapon and some of those people had died. The prosecutor then
asked him, “[I]s there a risk of killing somebody by hitting them
in the head with a hard object like that?” Detective responded,
“Absolutely.” The prosecutor later asked whether it is
“reasonable to use this kind of force, hit somebody in the head
with an object because they took some money from you.”
Detective answered, “No.”
¶41 In some cases, trial counsel’s decision not to object to
expert testimony from a lay witness can fall below an objective
standard of reasonableness. See, e.g., State v. Doutre, 2014 UT App
20180633-CA 17 2020 UT App 15State v. Lopez-Gonzalez
192, ¶ 21, 335 P.3d 366. But Lopez-Gonzalez has not grappled
with the question of whether the challenged testimony is
actually expert testimony as defined by the Utah Rules of
Evidence. See generally Utah R. Evid. 702. Nor has he
demonstrated that there is no sound basis for trial counsel’s
decision not to object. See Doutre, 2014 UT App 192, ¶¶ 12–13, 23
(indicating that if there is a reasonable tactical basis for trial
counsel’s actions, “we will not consider trial counsel’s
representation to be constitutionally deficient”); see also State v.
Hulse, 2019 UT App 105, ¶ 36 n.9, 444 P.3d 1158 (same). As a
result, Lopez-Gonzalez has not carried his burden of proving
this claim.
G. Theory of the Defense
¶42 Lopez-Gonzalez argues that trial counsel was ineffective
by failing to offer or develop “a theory of defense.” In so
arguing, he criticizes trial counsel for declining to give an
opening statement; not asking cross-examination questions “that
might bring out evidence in support of the self defense theory or
that [Victim] was trying to escape and in so doing, scared
[Lopez-Gonzalez]”; and “barely address[ing] the self defense
claim” in closing argument.
¶43 This claim of ineffective assistance centers on Lopez-
Gonzalez’s underlying belief that a self-defense theory, if
pursued with greater effort, would have succeeded. But Lopez-
Gonzalez has not shown how the evidence would have been
materially different had trial counsel done more to advance the
self-defense theory. And given the evidence in the record before
us, we see no reasonable likelihood of a different result even if
trial counsel vigorously pushed a self-defense theory. As
discussed, supra ¶¶ 29–31, the overwhelming evidence and
Lopez-Gonzalez’s own corroborating statements strongly
support his convictions, and the likelihood that the jury would
be persuaded by a later asserted self-defense theory was remote.
As a result, we conclude that Lopez-Gonzalez was not
20180633-CA 18 2020 UT App 15State v. Lopez-Gonzalez
prejudiced by trial counsel’s failure to more strongly pursue that
theory.
H. Non-use of an Interpreter
¶44 Lopez-Gonzalez contends that trial counsel provided
ineffective assistance by allowing Lopez-Gonzalez to testify in
English, his second language, instead of using the Spanish-
language interpreter. Although Lopez-Gonzalez began his
testimony with an interpreter, he soon asked whether it would
“be better” if he spoke in English or Spanish, noting that trial
counsel “recommended [that he] have an interpreter . . . for any
misunderstanding that [he] might have.” Trial counsel
responded, “It’s just up to you, whatever’s most comfortable for
you. If you can do it in English, that’s a little easier for the jury,
most likely.” Lopez-Gonzalez then said “[o]kay” and proceeded
to testify in English and without an interpreter.
¶45 To begin with, Lopez-Gonzalez himself decided to testify
in English. Moreover, he has not established that it was
objectively unreasonable for counsel to permit Lopez-Gonzalez
to testify without an interpreter. Cf. State v. Doutre, 2014 UT App
192, ¶ 12, 335 P.3d 366 (concluding that trial counsel “was not
deficient for failing to insist, against her client’s clearly stated
wishes, that [the defendant] attend the jury view”). And he has
not made any attempt to show prejudice. Consequently, we
reject this claim.
I. Direct Examination of Lopez-Gonzalez
¶46 Lopez-Gonzalez argues that trial counsel was ineffective
in the way he elicited his testimony on direct examination. With
little discussion or support, Lopez-Gonzalez asserts that trial
counsel invited his testimony in narrative form and merely
“provoke[d] unsolicited meandering direct testimony.” But these
assertions alone are insufficient to overcome the “strong
presumption that counsel’s conduct [fell] within the wide range
of reasonable professional assistance.” See Strickland v.
20180633-CA 19 2020 UT App 15State v. Lopez-Gonzalez
Washington, 466 U.S. 668, 689 (1984). He therefore has not shown
ineffective assistance in this regard.
II. Cumulative Error
¶47 Finally, Lopez-Gonzalez asserts that the cumulative effect
of trial counsel’s ineffective assistance requires that he be
granted a new trial. Under the cumulative error doctrine, we will
reverse “only if the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned
up). In other words, reversal is warranted under the cumulative
error doctrine only when “there is a reasonable probability that,
but for the several errors, a different verdict or sentence would
have resulted.” Id. ¶ 39 n.27.
¶48 The evidence of Lopez-Gonzalez’s guilt was
overwhelming. Multiple witnesses testified consistently about
Lopez-Gonzalez’s criminal acts, and Lopez-Gonzalez himself
admitted to the key facts underlying the charges against him. To
the extent we have assumed errors in this case, we conclude that,
even viewing them collectively, there is no reasonable
probability that absent those errors a different verdict would
have resulted. See id. The cumulative error doctrine therefore
does not apply.
CONCLUSION
¶49 Lopez-Gonzalez has not established any one of his claims
of ineffective assistance of counsel, and reversal is not warranted
under the cumulative error doctrine. Accordingly, we affirm.
20180633-CA 20 2020 UT App 15